P.H. v. C.S. (In re B.H.)

447 P.3d 110

In the MATTER OF the ADOPTION OF B.H., a person under eighteen years of age.

P.H. and A.D., Appellees,

v.C.S., Appellant.

No. 20171038-CA

Court of Appeals of Utah.

Filed June 13, 2019

Julie J. Nelson, Alexandra Mareschal, and Lisa Lokken, Cottonwood Heights, Attorneys for Appellant

Jessica S. Couser and Benjamin K. Lusty, Salt Lake City, Attorneys for Appellees

Judge David N. Mortensen authored this Opinion, in which Judges Michele M. Christiansen Forster and Kate Appleby concurred.

Opinion

MORTENSEN, Judge:

¶1 Although M.S. (Mother) and C.S. (Father) had been married since 2008, Mother claimed that a man other than Father (Purported Father) was the biological parent of B.H. (Child), who was born in Montana in early 2016. Within one week of Child’s birth, Mother voluntarily relinquished her parental rights and Child was placed into the custody of P.H. and A.D. (Adoptive Parents), who resided in Utah. Adoptive Parents filed a petition for adoption in the State of Utah. Father was served notice of the adoption proceedings and he intervened in the action. After a bench trial, the district court terminated Father’s parental rights and finalized the adoption. On appeal, Father argues that (1) the district court lacked subject matter jurisdiction to terminate his parental rights and (2) the district court erred in finalizing the adoption because the Interstate Compact on the Placement of Children (ICPC)¹ request form, filled out by Mother, was materially deficient in that it listed Purported Father, rather than Father, as the parent of Child. We conclude that the district court had jurisdiction, but set aside the adoption decree and remand for additional findings and conclusions on compliance with the ICPC.

BACKGROUND

¶2 Child was born in Montana on January 30, 2016. Less than one week after Child’s birth, Mother and Purported Father voluntarily relinquished their parental rights and consented to place Child for adoption with Adoptive Parents, who resided in Utah. Child was discharged from the hospital and placed into the custody of Adoptive Parents on February 5, 2016. Adoptive Parents remained in Montana until an ICPC request form 100A, listing Mother and Purported Father as Child’s parents, was approved by all the required ICPC administrators on February 9, 2016.² The record indicates that Adoptive Parents transported Child to Utah the next day, on February 10, 2016.

¶3 Adoptive Parents initiated adoption proceedings by filing a petition (Adoption Petition) on January 26, 2016. On February 10, 2016, Adoptive Parents filed a Motion for Temporary Custody of Child and indicated that they had "recently learned that [Mother] is still technically married to [Father]" and Adoptive Parents were "working on determining paternity and/or providing notice to address any legal interests [of Father]." The district court granted temporary custody of Child to Adoptive Parents the next day (Temporary Custody Order).

¶4 On February 22, 2016, Adoptive Parents sent notice of the adoption proceedings to Father. Father intervened two weeks later.

¶5 Meanwhile, Father filed for divorce from Mother in Montana on March 14, 2016. As part of the divorce, the Montana court ordered genetic testing of Father and Child, which determined that Father was Child’s biological parent.

¶6 On June 29, 2016, Adoptive Parents petitioned the district court—in the adoption proceedings—to terminate Father’s parental rights (Termination Petition). The district court held a bench trial on the Termination Petition on July 31, 2017. After the trial, but before ruling on Father’s parental rights, the district court ordered the parties to file a memorandum addressing whether the court had jurisdiction to terminate Father’s parental rights. The district court concluded that it had jurisdiction under Utah Code section 78B-6-105, terminated Father’s parental rights, and finalized the adoption.

¶7 Father appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 Father raises two issues. First, he contends that the district court erred in concluding that it had jurisdiction to terminate his parental rights. Issues concerning jurisdiction are reviewed for correctness and we grant no deference to the district court’s conclusion. State v. Wynn , 2017 UT App 211, ¶ 11, 407 P.3d 1113 ; see also State v. Nicholls , 2006 UT 76, ¶ 3, 148 P.3d 990 ; In re A.J.B. , 2017 UT App 237, ¶ 12, 414 P.3d 552.

¶9 Second, Father contends that the district court erred in finalizing the adoption, because the ICPC was not complied with. " ‘The proper interpretation and application of a statute is a question of law which we review for correctness ....’ " In re P.F.B. , 2008 UT App 271, ¶ 10, 191 P.3d 49 (omission in original) (quoting Gutierrez v. Medley , 972 P.2d 913, 914–15 (Utah 1998) ).

ANALYSIS

I. Jurisdiction

¶10 Father contends that the district court erred in terminating his parental rights, because the court lacked jurisdiction under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).³ Father also contends that the court lacked jurisdiction under the Utah Adoption Act, see generally Utah Code Ann. §§ 78B-6-101 to -146 (LexisNexis 2018),⁴ because, under these facts, jurisdiction under the UCCJEA must be established as a prerequisite to jurisdiction under the Adoption Act. We review jurisdictional requirements under the Adoption Act and UCCJEA in turn.

A. Adoption Act

¶11 The Adoption Act confers jurisdiction over adoption proceedings "in the district where the prospective adoptive parent resides." Utah Code Ann. § 78B-6-105(1)(a) (LexisNexis 2018). Thus, as an initial matter, where Adoptive Parents reside in Utah and the Adoption Petition was filed in Utah, the district court below properly exercised jurisdiction under the Adoption Act. But Father argues that the district court lacked jurisdiction to terminate his parental rights under the Adoption Act "because the termination proceeding is not itself the adoption proceeding." This argument is unavailing for two reasons.

¶12 First, the Adoption Act expressly confers subject matter jurisdiction to terminate parental rights for the purpose of facilitating an adoption. Id. § 78B-6-112(1). Section 78B-6-112 also expressly states that a petition to terminate parental rights may be "(a) joined with a proceeding on an adoption petition; or (b) filed as a separate proceeding before or after a petition to adopt the child is filed." Id. § 78B-6-112(2). Here, Adoptive Parents initiated the adoption proceedings by filing the Adoption Petition in January 2016. And in June 2016, Adoptive Parents filed the Termination Petition in the same adoption proceedings. Because the Adoption Act expressly provides for jurisdiction over a petition to terminate parental rights when that petition is filed within an adoption proceeding, and because that procedure was followed here, we conclude that the district court had jurisdiction over both the Adoption Petition and the Termination Petition.

¶13 Father cites the dissenting opinion in Osborne v. Adoption Center of Choice , 2003 UT 15, 70 P.3d 58, to support his argument that the termination proceeding was separate from the adoption proceedings. See id. ¶ 53 (Durham, J., dissenting) ("[A determination of parental rights] is not an adoption proceeding, but a separate proceeding that precedes an adoption proceeding." (cleaned up)). This argument falls short for two reasons. First, despite the dissent’s position in Osborne , the majority held that the district court did not exceed its jurisdiction by making a parental-rights determination within the adoption proceedings. Id. ¶¶ 12–13, 29 (majority opinion). Second, the relevant portion of the Utah Code in effect at the time Osborne was decided provided that a petition for determination of parental rights may be filed " ‘at any time prior to the filing of a petition for adoption.’ " Id. ¶ 45 (Durham, J., dissenting) (emphasis added) (quoting Utah Code Ann. § 78-30-4.24 (2002) ). However, this provision was amended after Osborne and permits a determination of parental rights to be requested by petition any time prior to the "finalization of an adoption," id. § 78B-6-109(1)(a)–(b) (LexisNexis 2018) (emphasis added), or by motion within an adoption proceeding, id. § 78B-6-109(2). Accordingly, because precedent and the applicable Utah statute allow for a determination of parental rights within an adoption proceeding, we conclude that Father’s argument is without merit.

¶14 Second, the district court in this case had jurisdiction to terminate Father’s parental rights, despite the fact that he resides in Montana, because Father received notice of the adoption proceedings and intervened. The Adoption Act provides that "the fact of the minor’s presence within the state shall confer jurisdiction ..., provided that due notice has been given in accordance with the Utah Rules of Civil Procedure." Id. § 78B-6-105(4)(a) ; cf. Beltran v. Allan , 926 P.2d 892, 898 (Utah Ct. App. 1996) (holding that an out-of-state father was subject to Utah’s statutory scheme and therefore required to file notice of paternity because he was on notice that the mother was in Utah to place their child for adoption). Here, Father received notice of the adoption proceedings on February 22, 2016. Specifically, he was served notice that (1) adoption proceedings had been filed in Utah, (2) he could intervene in the adoption proceedings, and (3) his failure to intervene would result in a waiver and forfeiture of all rights in relation to Child. This notice was sufficient to confer jurisdiction to the district court under section 78B-6-105(4)(a) of the Adoption Act.

¶15 The exercise of jurisdiction over a non-resident is not unique to this case. Our supreme court in In re adoption of B.B.D. , 1999 UT 70, 984 P.2d 967, held that when a non-resident father intervened in adoption proceedings, he "voluntarily invoked and submitted to the jurisdiction of Utah, its laws, and its court system." Id. ¶ 29....